GSA - Ask Acquisition Questions & Answers

15.I have solicited one of your suppliers for an item that is on their GSA schedule. They came back with a quote that is 35% higher than the price listed in the schedule on the GSA Advantage web site. This is a commercial item and is a part number buy.

My understanding is that the GSA Advantage web site provides accurate information and I would be within policy and procedures to issue an order that incorporates the terms and conditions of the GSA schedule contract and the contractor must accept it as long as it (the order) does not exceed the maximum order value for that SIN.

If I am correct in this assumption, is there anything that precludes me from doing just that even though I have in hand a quote that is higher than the GSA schedule price?

I do not have that much experience with the GSA schedule, but would like to know if this type of issue comes up very often, that is a contractor quoting (in response to a RFQ/RFP) a higher price than the one found in the GSA schedule

16.What is a DUNS?

17.What size business in revenue is considered a large business?

18.I would like to know what the Federal Government policy is for Purchases. In particular what are the bid/RFP dollar amounts for Verbal, written bids, RFP/RFQ's. The hospital is reviewing it bid policies.Any help, suggestions would be appreciated.

19.Can you clarify for me if municipalities (state and local governments) may use GSA contracts? (A particular city is the NE would like to purchase a four-wheel drive loader from D John Deere and trying to determine is it is eligible to use a GSA contract.)

20.Am I required to make a responsibility determination when I place an order under a GSA Multiple Award Schedule (MAS) contract?

GENERAL

1. What acquisition e-tools does GSA offer to assist in managing my agency's procurement transactions?

2. Does GSA hold events where can I find out more about GSA's offerings and other acquisition information?

3. Is a written acquisition plan required for modifications over $100,000?

4. We are preparing to solicit for Phase I of the Design/Build contract for a courthouse. Many contractors and A/E firms have worked on various pieces of the specifications developed to date. Should every firm that has been a part of the solicitation development be excluded from submitting a proposal? For example, if a firm helped develop specifications for electrical or engineering, are they banned from proposing as the construction firm?

5. What is GSA policy for awarding sole-source contracts?

6. If a task order was awarded without preparation of a D&F, at the time an option is exercised, is it necessary to prepare a D&F justifying the T&M task order?

7. An associate in our region submitted to a selected group of vendors (including FSS Schedule holders, NIH holders, SEWP, Connections) a bill of Materials for commodities and requested the vendors to provide information regarding the best pricing vehicle. Does this constitute market research and is it allowable under the FAR, GSAM and GSA Policy Directives?

8. Is an Administrative Contract Officer required to issue a modification (SF 30) when extending a Purchase Order at no cost or in exchange in expediting another order?

9. Number 1 and number 2 below are in one of our tasks that has been awarded. Since number 2 is in the task, the client wants to add funds to cover the incentive. Is this allowed?

10. For A/E Services procured under the Brooks Act, is it acceptable to complete the first phase (place ad, evaluate qualifications of offerors, and short list) before and acquisition plan has been completed?

11. I work in a GSA/FTS program office supporting implementation of two telecommunications contracts. We regularly get calls from DoD customers asking about support after 10/1/04 considering the present acquisition environment. Can their present local telephone service continue into next year as planned? If they put a task order in place now that commences 10/1 or is effective now through next year, will it need to go through the DoD review process? Can they enter the DoD review process now? What should they do with a current requirement?

12. I am with the Office of Inspector General---USPS. I am looking for the GSA official definition of "Most Preferred Customer". Could you guide me to the right place?

13. What is the government's policy on purchasing agents applying for rebates on product purchases such as computers? Where can I get the Government's Directive on this issue?

If COMPAQ offered a 100 dollar rebate, can the purchasing agent apply for the rebate, and who is entitled to the rebate amount if the named individual is on the rebate check? Does the rebate check have to be made out to the government agency?

What if the contractor buys the equipment "for the government's ownership"and applies for the rebate and receives the check? Does the contractor credit the Government?

14. I am trying to locate the Best Value process in the Federal Acquisition Regulations.

15. Can a contractor that is under a cost reimbursement contract (running a Federally Funded R&D Center) use a PBS IDIQ contract for construction?

16. NCR has several CO's that have differing opinions about our uniform contract ID numbers. What does manual and automated mean? For the majority of our simplified acqusitions the "M" is being used, however there are those that feel the "P" applies most of the time. Please explain.

17. To what extent can one contractor review the work of another contractor?

18. Can one contractor assist another with questions one contractor has?

19. Northeast wholesale is interested in selling to the US Government bulk building supplies such as nails and tools. Please advise whom to contact. Thank you roz3341@COMCAST.NET

20. Is this the link to view Questions and Answers to Ask.Acquisition@gsa.gov? I couldn't get to this site from the Office of CAO page so I wasn't sure if this is current.

http://www.gsa.gov/Portal/gsa/ep/contentView.do?contentType=GSA_BASIC&contentId=18644&noc=T

21. What is the definition of a cardinal change to a contract?

22. Where can I find a comprehensive listing (if one exists) of what authorities the HCA has delegated and to whom these authorities have been delegated? For example, we're trying to determine if the authority to approve a Determination and Findings to cancel a solicitation has been delegated down from the HCA.

23. Where can I find information on the web on the Clinger Cohen Act?

24. “Our contracting officers do not want to sign modifications to close out task orders because they fear that if they sign a mod to some of these old task orders (some with problems) that they will then be thrown into the mix for the auditors to choose from for this next audit. The critical thing is that we are mandated to close out all of our ended task orders by the end of the fiscal year.

I have talked with our local IG auditors as well as sent them an email asking them if these close-out modifications would be considered in the 'mix' of the next round of audits. They verbally told me they did not think so, but they could not guarantee it because they are not in charge of deciding what orders will be pulled and what will not be pulled for this audit. They told me they sent my email up to the lead IG, but we have not heard back from them yet. As I stated, we are in critical mode now as we have literally hundreds of modifications to do to close out completed task orders and they are not getting done.

Can you help with finding out from the lead IG in this next audit whether these close out modifications will be included in the 'mix' or not? In my opinion as well as our local IG auditor's opinion is that the orders are dead and there is no action that we can take to make anything better or right if there is something wrong with the order.”

GWAC

1. What are the differences between GSA Multiple Award Schedule (MAS) contracts, Governmentwide acquisition contracts (GWACs), and Multi-agency contracts (MACs)?

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FUNDING

1. Can funds be added to a task order after the period of performance has expired to cover valid and verified performance of the contractor as a close out action? Specifically, what is the preferred course of action when final billing is reconciled at the conclusion of a task order?

2. What are the guidelines for using federal funds to purchase memberships to professional organizations?

3. I work for the Federal Technology Service and we are striving to comply with appropriate guidance and regulations. In doing so, we have recently been faced with several instances where a DoD entity provided funding and a defined requirement in September 2004. The funding is FY 04 O&M type funds. GSA began immediately processing the requirement, but due to various delays caused by our internal processes and policy changes, we have just recently been able to process the paperwork in sufficient enough detail to procure the products/services.

In addition, we have received official amendments to FY 04 customer funding documents that have reclarified that 1) the bona fide need is still valid, and/or 2) that funds are good for obligation purposes through a certain date, i.e., September 2005. The official amendments have been signed by authorized agency officials, i.e., financial managers and in some cases attorneys.

The defined requirement was received along with the funding when it was still valid for obligation or modified via official amendment by an authorized customer agency official. Under the attached policy (latest DoD Policy about proper use of IAs) I believe it may be possible to fulfill these requirements using the FY 04 funding. Please clarify for me whether or not we can legally utilize these FY 04 funds to award such a project.

4. If the customer agency's budget office officially amends the MIPR to establish a new expiration date, even though it appears to us to be 1 year O&M funding, is it your interpretation that we have are safe in using those funds as ultimately it is the agency's budget office that is responsible for the decision on whether funding is good or not?

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DoD

1. What is the Berry Amendment?

2. What is the Wynne letter?

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PAST PERFORMANCE

1. FAR 16.505 discusses using past performance as an evaluation factor dealing with "Past performance on earlier orders under the contract, including quality, timeliness, and cost control."

FAR 8.405-1(c)(1) lists use of past performance as a potential factor for determining best value for orders exceeding the micro-purchase threshold, but gives no guidance on elements or characteristics of past performance we should be evaluating.

What is your recommendation or guidance for the elements or characteristics of past performance we should be evaluating for FSS buys that exceed the micro-purchase threshold, procured under FAR 8.4?

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Protest

1. What is the proper format for contractor's to use when submitting a protest to a GSA Contracting Officer or to the Agency?

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1. What is ACMIS?

Acquisition Career Management Information System is a Governmentwide database that collects educational and training information on the Federal acquisition workforce, managed by the Federal Acquisition Institute.

2. Can you help me find the correct website for COR certificates and GSA policy/training?

For COR Certificates you may visit the website at FAI online. Guidance regarding GSA's Contracting Officer Representative may also be found in the General Services Administration Acquisition Manual (GSAM) at 501.603-2(c)(5).

If you need additional information or have further questions regarding GSA's COR Certificates or Acquisition Workforce policy/training, please do not hesitate to contact Pat Miller at (202) 501-2518 or email at patricia.miller@gsa.gov.

BPA'S

1. Does a Blanket Purchase Agreement against a Federal Supply Schedule meet the definition of a multi-year contract according to FAR 17.1?

No. A BPA that is established against a Federal Supply Schedule is an agreement with a GSA Schedule contractor to fill repetitive needs for supplies or services. A BPA generally should not exceed five years in length, but may do so to meet program requirements. Schedule Contractors may be awarded BPAs that extend beyond the current term of their GSA schedule contract, so long as there are option periods in their GSA Schedule contract that, if exercised, will cover the BPA’s period of performance. No funding is required to establish a BPA. Obligations occur only when task or delivery orders are placed and are chargeable to the fiscal year in which the order is placed.

Multiyear contracts on the other hand are contracts not an agreement for the purchase of supplies or services for more than 1, but not more than 5, program years and are contingent upon funding. A multiyear contract must have funds available for the first fiscal year in which the contract is in effect, and for the estimated costs associated with any necessary termination of such contact.(41 USC § 254c).

2. May an agency establish a single award BPA for hourly rate services and provide the SOW only to the single BPA vendor, as long as the resulting order specifies a price for the task?

After establishing a single BPA using the procedures outlined in 8.405-2, an ordering activity may place an order that includes the statement of work (that is within the scope of the BPA) with the schedule contractor with whom the BPA is established. The price for the task shall be specified in the order.

3. When ordering under a BPA, does the requirement for releasing the RFQ to multiple vendors (at 8.405-2) apply?

If a single BPA is established using the procedures outlined in 8.405-2, the ordering activity places the order directly with the schedule contractor with whom the BPA was established. The procedures in 8.405-2 are also used to establish multiple BPAs. However, for orders placed under multiple BPAs, the ordering activity is responsible for specifying the procedures for placing orders under the multiple BPAs (see 8.405-3 (a)(3)).

4. I'm a vendor interested in doing business with the government. How do I obtain a GSA contract?

To become a GSA Schedule contractor, a vendor must first submit an offer in response to the applicable GSA Schedule solicitation. GSA awards contracts to responsible companies that offer commercial items falling within the generic descriptions in the GSA Schedule solicitations. For more information visit the Getting on Schedule page.

5. What are the regulations regarding contractors purchasing from Multiple Award Schedules?

Properly authorized cost-reimbursable contractors (and sub-contractors) may purchase directly off GSA Schedules as outlined FAR 51. The contracting officer awarding the cost type must include in the contract the appropriate clause at FAR 52.208-9, Contractor Use of Mandatory Sources of Supply or services. Once included in the contract the contractor can order directly through the GSA Schedule program.

6. When issuing a RFQ against GSA Schedules (through E-buy), can the contracting officer set aside the competition to small businesses and refuse to accept quotes from large business firms?

Acquisition Letter V-05-12 provides guidance to ordering activities on limiting consideration to small businesses on orders placed under the Federal Supply Schedule Program. The Acquisition Letter is available for download at www.gsa.gov. The term "set aside" does not apply to the GSA Schedules program. You may limit competition to small businesses in selecting the contractors to send a RFQ to. Under the current rules however, any schedule holder may submit a proposal and you must consider it. You may choose as one of your source selection factors achievement of agency socio-economic objectives and this factor, when added to price and other factors may make the offer of a non-small business not the best value.

7. GSA issued a Procurement Information Bulletin 97-14 on September 3, 1997 explaining changes made to various aspects of the Multiple Award Schedule program, including the Most Favored Customer pricing goal. In this PIB, GSA stated that there may be legitimate reasons why the MFC price given to commercial customers is not an appropriate negotiation objective, and that "those reasons must be justified and clearly set forth in the Price Negotiation Memorandum." PIB 97-14, page 2.

Although the PIB is not a regulation that has the force and effect of law, I would like to know how GSA uses this document as internal guidance.
-- Specifically, does GSA mandate, as an internal policy, that its contracting officers justify in the PNM the reasons why the MFC price was not obtained, as stated in the PIB?
-- Or does GSA allow its contracting officers to decide whether or not to follow the PIB's guidance with regard to setting forth in the PNM the reasons for not obtaining MFC pricing?

What we do is determine the customer who we are most like in terms of buying practices and then we use that customer's pricing as our benchmark.

8. I am an industry Government Contract Manager.

At 69 Fed. Reg. 34246, promulgated on June 18, 2004, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (FAR Councils) adopted either final or interim rules which, among other things, clarified the language at FAR 8.404(a) to indicate that ordering activities need not seek competition outside of the Federal Supply Schedules, but must follow the procedures under Subpart 8.4 to ensure compliance with the requirement for full and open competition, as implemented under the Multiple Award Schedules program.

Subsequently, GSA modified our Schedule 084 (Law Enforcement, Security, etc.) to delete G-FSS-920 - Ordering Procedures for Services (requiring a Statement of Work - in its entirety, without replacement. Although the modification no longer stipulates ANY ordering procedures, we are assuming that ordering agencies will revert to their own ordering procedures, or use FAR 8.4. Because the Civilian Council and Defense Council ordinarily act in cooperation, I have been trying to ascertain whether Department of Defense has or intends to modify its language at 208.404-70(c)(1)-(2) to revert to FAR 8.4 procedures or otherwise address consistency with GSA's deletion of G-FSS-920.

The FAR takes precedence over any agency supplement to the extent there are differences, the FAR language controls. I don't know whether DoD will change the language or not. All customers should be using the ordering procedures in the FAR.

9. When a published Agency (telecom) requirement is being competed among GSA FSS Schedule contractors is there a written regulation or policy governing the GSA/Open Market line item split? For example, a requirement that 51% of the proposal value must consist of GSA products and services?

According to Federal Acquisition Regulation 8.402(f), for administrative convenience, Open Market, or incidental, items may be included on a task or delivery order issued under a Federal Supply Schedule contract under the following conditions:

All applicable acquisition regulations pertaining to the purchase of the items not on the Federal Supply Schedule have been followed (e.g., publicizing (Part 5), competition requirements (Part 6), acquisition of commercial items (Part 12), contracting methods (Parts 13, 14, and 15), and small business programs (Part 19));
The ordering activity contracting officer has determined the price for the items not on the Federal Supply Schedule is fair and reasonable;
The items are clearly labeled on the order as items not on the Federal Supply Schedule; and
All clauses applicable to items not on the Federal Supply Schedule are included in the order.

10. The County of Grant in Silver City, New Mexico, would like to make a purchase off your GSA contract GS-07F-0667N with Real Turf from Albuquerque, NM.

Vendor is requesting 50% payment upon equipment mobilization and prior to ordering material from supplier. Vendor claims this is a requirement under GSA contract.

Since our policy is for payment upon mobilization and delivery of material, we would like to request clarification of this contract so that we can proceed with our project. Any assistance you can provide would be appreciated.

Under GSA contracts, if a purchaser (customer) is eligible to purchase on GSA contract and use the Governmentwide Purchase Card, the customer is not required to make payment until shipment is made. If paying by check, the customer has 30 days to make payment, after receipt of shipment. However, if the customer is not eligible to purchase on GSA contract, the customer must make the purchase on the open market (without the use of a GSA contract) and be subject to the terms and conditions of the sale.

State and Local Governments are able to purchase products and services listed under the 1122 Counter drug Program, using a GSA contract. Since the services/supplies you are attempting to procure do not fall under the 1122 Counter drug Program, you cannot use the GSA contract GS-075-0667N for the purchase.

Additionally, Section 211 of the E-Government Act authorizes state and local governments to use GSA Federal Supply Schedule 70, Information Technology, to acquire automated data processing equipment, software, supplies, support equipment, and services.

If you need additional information or have further questions regarding the use of GSA's contracts, please do not hesitate to contact Cheryl M. Allen, Business Development Specialist, Business Operations Division, Greater Southwest Acquisition Center (7FCO), at (817) 978-2044, or e-mail: cheryl.allen@gsa.gov.

11. Please provide clarification as to when GSA is required or allowed to offer GSA/Open Market pricing?

If there is a GSA customer, is it required to offer pricing off of a GSA schedule when it is known that they can purchase on the open market for less. Also, if the said goods are offered on an open market basis instead of GSA, is it required to reference the relevant GSA schedule and price as a check to the fact the pricing is below GSA schedule price?

FAR Subpart 8.002 lists the descending order of priority for agencies to satisfy requirements for supplies and services. In accordance with FAR Subpart 8.404, orders placed against a multiple award schedule, using the procedures in this subpart, are considered to be issued using full and open competition. Vendors are not required to reference GSA schedules and prices when making offers on an open market basis. However there are priorities for use of Government supply sources. Therefore, if orders are placed on an open market basis, all applicable acquisition regulations must be followed such as synopsizing (FAR Subpart 5.101), competition requirements (FAR Subpart 6.1), acquisition of commercial items (FAR Part 12), contracting methods (FAR Parts 13, 14, and 15), and small business programs (FAR Part 19). The contracting activity must also make a determination that the price for the items not on GSA schedules is fair and reasonable.

12. Who supplies the following part number, NEFS #0136, 4730-00-595-1103 to the Wild fire equipment supply? Please provide an address or website.

The items from the “Wildfire Protection Equipment and Supplies” catalog are available for purchase by the North Carolina fire departments through the NC Division of Forest Resources (NCDFR). All items are designated and manufactured according to U.S. Government specifications for use on wildland fires. The NCDFR purchases the items for fire departments from General Services Administration who negotiates the contracts. Please check your local County Forest Ranger for current pricing or Fire Department Assistance Program website for additional information including catalogs and order forms.

13. I understand a GSA policy letter was sent out on April 18, 2005 by GSA to DoD instructing that contracting officers are not to require contractors to certify that work is "within the scope" under the GSA schedule. Is this letter posted anywhere - or to be posted anywhere? If not, can I get a copy?

On April 18, 2005, GSA forwarded a letter (attached) to the Chief Acquisition Officer of the Department of Interior to convey that DOI's GovWorks practice of requiring contractor certification of scope is inconsistent with the MAS program. We reminded DOI that the ordering procedures in FAR Subpart 8.4 do not require the schedule contractor to certify that their proposed solution to a requirement is within the scope of the MAS contract. The letter is available for download at www.gsa.gov.

14. In reading Section 19.1404 regarding the service-disabled veteran-owned small business (SDVOSB) procurement program, I noted that Subpart 19.14 does not apply to requirements that can be satisfied through orders against Federal Supply Schedule contracts. Therefore, if I understand this correctly, a procurement that might otherwise be set aside for a (SDVOSB) firm(s) must be procured under Federal Supply Service Multiple Award Schedule contract if the service is available under the schedule program. Is this a correct reading of 19.1404? If this is a correct reading, I am concerned that this will significantly impact our ability to increase awards to SDVOSBs since the Federal Supply Service Multiple Award Schedules now cover many of the building services that these SDVOSBs can provide.

That is a correct interpretation of 19.1404. Although the mandatory preference programs of Part 19 do not apply, orders placed against schedule contracts may be credited toward the ordering activity’s small business goals (including service-disabled veteran-owned small business goals). For purposes of reporting an order placed with a small business schedule contractor, an ordering agency may only take credit if the awardee meets a size standard that corresponds to the work performed. (Reference: 8.405-5 - Small business)

Ordering activities may consider socio-economic status when identifying contractor(s) for consideration or competition for award of an order. At a minimum, ordering activities should consider, if available, at least one small business, veteran-owned small business, service disabled veteran-owned small business, HUBZone small business, women-owned small business, or small disadvantaged business schedule contractor(s). For orders exceeding the micro-purchase threshold, ordering activities should give preference to the items of small business concerns when two or more items at the same delivered price will satisfy the requirement. (Reference: 8.405-5 - Small business)

If an agency is trying to achieve credit for a particular socioeconomic category, the agency can look at 3 or more contractors in a specific socioeconomic category if they can meet the requirement. FAR 8.404-2 entitled “Ordering procedures for services requiring a statement of work” states that for orders exceeding the micropurchase threshold, the RFQ, statement of work and evaluation criteria shall be provided to at least 3 schedule contractors that offer services that will meet the agency's need. If the proposed order exceeds the maximum order threshold, the RFQ, statement of work, and evaluation shall be provided to additional schedule contractors.

15. I have solicited one of your suppliers for an item that is on their GSA schedule. They came back with a quote that is 35% higher than the price listed in the schedule on the GSA Advantage web site. This is a commercial item and is a part number buy.

My understanding is that the GSA Advantage web site provides accurate information and I would be within policy and procedures to issue an order that incorporates the terms and conditions of the GSA schedule contract and the contractor must accept it as long as it (the order) does not exceed the maximum order value for that SIN.

If I am correct in this assumption, is there anything that precludes me from doing just that even though I have in hand a quote that is higher than the GSA schedule price?

I do not have that much experience with the GSA schedule, but would like to know if this type of issue comes up very often, that is a contractor quoting (in response to a RFQ/RFP) a higher price than the one found in the GSA schedule.

In response to your question regarding "Schedule prices." GSA Advantage! is GSA’s electronic on-line shopping and ordering systems. Schedule contractor's are required to upload their schedules pricelist and GSA pricing to this systems. In some instance the entire pricelist is not available via Advantage due to the shear volume of products offered. In instances where the contractor’s catalog is not available, you are encourage to contact the schedule contracting officer to verify the prices.

The price quoted to you should not exceed the price on this system or in the contractor’s hardcopy GSA schedule pricelist (the contractor’s schedule pricelist should be available for download from GSA Advantage!). The pricelist in addition to pricing, contains all the schedule terms and conditions.

GSA allows Schedule contractors to lower their contract prices at any time. Although you may seek price reductions at any time, you are required to seek price reductions on any order that exceeds the maximum order limitation (See Federal Acquisition Regulation (FAR) Subpart 8.405-1(d)). Access the FAR . I also encourage you to contact the schedule contracting officer to make him or her aware that the schedule contractor that you are referring to in your email is quoting prices other than those in his or her pricelist.

Contact information for Schedule Contracting Officers may be obtained at Schedule List, where you will be able to find contact information for the applicable Schedule Contracting Officer.

16. What is a DUNS?

Data Universal Numbering System (DUNS) number means the 9-digit number assigned by Dun and Bradstreet, Inc. (D&B), to identify unique business entities. Data Universal Numbering System +4 (DUNS+4) number means the DUNS number assigned by D&B plus a 4-character suffix that may be assigned by a business concern. (D&B has no affiliation with this 4-character suffix.) This 4-character suffix may be assigned at the discretion of the business concern to establish additional CCR records for identifying alternative Electronic Funds Transfer (EFT) accounts (see Subpart 32.11) for the same concern.

17. What size business in revenue is considered a large business.

It depends on the North American Industry Classification System (NAICS) code used for the procurement. For instance, NAICS code 113110, Timber Tract Operations, has a revenue size standard of $6 million while NAICS code 114112, Shellfish Fishing, has a revenue size standard of $3.5 million.

Additional information about NAICS codes and size standards may be obtained from the Small Business Administration Website.

In addition, please refer to the information below for direct access to the Small Business Administration:

For further information, you may write or call the Office of Size Standards:
Office of Size Standards
U.S. Small Business Administration
409 3rd St., SW, Washington, DC 20416
Phone: (202) 205-6618
Fax: (202) 205-6390
E-mail: sizestandards@sba.gov

18. I would like to know what the Federal Government policy is for Purchases. In particular what are the bid/RFP dollar amounts for Verbal, written bids, RFP/RFQ's. The hospital is reviewing it bid policies. Any help, suggestions would be appreciated.

There is no set dollar amount for bids/RFP's/RFQ's. The amount bid for government RFP's/RFQ's varies based on what is being purchased and can range from several dollar to several billion dollars. Federal Acquisition Regulations (FAR) Part 14 discusses the policy for sealed bidding in the federal government.

19. Can you clarify for me if municipalities (state and local governments) may use GSA contracts? (A particular city is the NE would like to purchase a four-wheel drive loader from D John Deere and trying to determine is it is eligible to use a GSA contract.)

Pursuant to 40 United States Code (U.S.C.), section 502, GSA may make its sources of supply available to Federal agencies, mixed-ownership Government corporations, and the District of Columbia, upon request. Also, GSA may provide access to GSA sources to a qualified nonprofit agency for the blind or other severely handicapped that is to provide a commodity or service to the Government under the Javit-O'Day Act. As a general rule, when GSA is unable to extend its agency's sources of supply to a requesting entity based on (40 U.S.C. Sec. 502, GSA reviews other relevant statutes to determine if the organization is authorized based on other authority.

So, you see that specific authority is needed to access GSA supply sources. Please be aware that since this specific authority is not afforded to state and local governments via 40 U.S.C. Sec. 502, GSA has taken the position that except in limited circumstances, state and local governments are not eligible to access GSA supply sources.

Please note that these limited circumstances have resulted from reviews of other relevant statutes that specifically authorize access to GSA supply sources. Currently, the exceptions to the general rule are: (1) the purchase of law enforcement equipment suitable for counter-drug activities for the Department of Defense; (2) wildfire suppression equipment through cooperative agreements with authorized Federal agencies; and (3) the ability of state and local governments to purchase automatic data processing equipment, software, supplies, and support equipment ( Schedule 70) per Sec. 211 of the Electronic Government Act (HR 2458 (2002).

20. Am I required to make a responsibility determination when I place an order under a GSA Multiple Award Schedule (MAS) contract?

At the time of MAS contract award, GSA makes a responsibility determination. GSA reviews an offeror’s financial, performance and business ethics information as the basis of responsibility determinations under FAR Part 9. The signed schedule contract constitutes a determination that the prospective contractor is responsible with respect to that contract. In addition, GSA reviews the responsibility of the MAS contractors at each option period. Further, GSA monitors contractor performance on key aspects of MAS contract compliance throughout the life of the contract. Therefore, agencies using the MAS program are not required to make separate responsibility determinations for individual orders.

Although a separate responsibility determination is not necessary, FAR 9.405-1(b) states that when contractors are debarred, suspended, or proposed for debarment, the ordering activities should not place orders against MAS contracts without a justification from the agency head. Therefore, ordering agency contracting officers should check the Lists of Excluded Parties immediately after opening the offer (FAR 9.405(d)(1)) then check again prior to award (FAR 9.405(d)(4)). If a customer agency contracting officer has information to question the continuing responsibility of a contractor, then he or she should bring it to the attention of the MAS contracting officer."

GENERAL

1. What acquisition e-tools does GSA offer to assist in managing my agency's procurement transactions?

GSA offers several e-tools designed to help manage an agency's GSA procurement transactions, place orders, or learn about business opportunities. From the Federal Procurement Data Center and FedBizOps to e-buy and e-library, customers can find information about many leading-edge services that GSA offers through our website at gsa.gov.

2. Does GSA hold events where can I find out more about GSA's offerings and other acquisition information?

The Federal Acquisition Conference & Exposition (FACE) 2007 is sponsored by the Federal Acquisition Institute (FAI). The Theme of FACE this year is Acquisition Frontiers: Blazing New Trails. FACE 2007 provides new sessions for the acquisition workforce community. Attendees will leave FACE with "tool kits", best practices and lessons learned, practical applications, and human capital development success stories. FACE is a forum for federal acquisition professionals and policy makers to share insights and experiences that provide a full range of training on the latest acquisition issues and an opportunity to review exhibitors' products and services.

FACE 2007 will be held June 19-20, 2007, at the Ronald Reagan Building, Washington D.C. For more information and how to register please visit the FAI website.

The 13th Annual GSA International Products and Services Expo will be held May 15-17th, in Orlando, FL. Admission is free for all government and military personnel, and the show features more than 200 hours of FREE training courses offered attendees can earn Continuous Learning Points (CLPs) for selected courses. For more information on Expo please visit the Expo website.

3. Is a written acquisition plan required for modifications over $100,000?

Written acquisition plans are not required under $100,000. GSA's Acquisition Letter on Acquisition Planning spells out when a limited acquisition plan is required and when a full plan is required. To satisfy the requirement for market research and acquisition planning under $100K a contracting officer need only document the contract file describing generally the plan he or she has settled on to satisfy the requirement. Acquisition planning and market research should be tailored to the complexity and value of the requirement.

The use of orders against an existing contract does not obviate the need for an acquisition plan. The process by which one determines to use a GSA Schedule or an IDIQ is the acquisition planning process. If the order is above $100K then a written plan is required and should document the basis for using an existing contract to meet the requirement.

4. We are preparing to solicit for Phase I of the Design/Build contract for a courthouse. Many contractors and A/E firms have worked on various pieces of the specifications developed to date. Should every firm that has been a part of the solicitation development be excluded from submitting a proposal? For example, if a firm helped develop specifications for electrical or engineering, are they banned from proposing as the construction firm?

This is an issue that should have been addressed at the beginning of the process in the acquisition plan and put the contractors on notice as design services were purchased. At this point it is an issue of Organizational Conflict of Interest and will be very fact specific, resolved on a case-by-case basis.

The solicitation should specifically point out the possibility of conflicts of interests and require the contractors to affirmatively assert that they are not conflicted. Counsel can help prepare the language; however, a general disqualification is not recommended.

5. What is GSA policy for awarding sole-source contracts?

The FAR and GSA's special ordering procedures were changed on June 18, 2004 to specifically allow for sole source awards against the schedules using the processes of FAR Part 6. Prior to the publication of the FAC, there was no authority to make a sole source award against the schedules.

In accordance with FAR Part 42.1303, issuance of a stop-work order shall be approved at a level higher than the contracting officer. Please identify who constitutes a level higher than the contracting officer. Depending on the agency and other guidance, anyone immediately above the contracting officer in the supervisory chain or HCA.

6. If a task order was awarded without preparation of a D&F, at the time an option is exercised, is it necessary to prepare a D&F justifying the T&M task order?

The question presumes that the original task order was a sole source award and was not properly documented at the time the task order was placed. In this case any sole source task order against a schedule issued prior to June 18, 2004 was without authority in the first place. At this point, I recommend that you treat this as an irregular procurement, ratify the initial order and then execute the option. Alternatively, you can cancel the existing order, do a sole source bridge contract, assuming that there is an urgent and compelling circumstance to support it, and run a new competition.

7. An associate in our region submitted to a selected group of vendors (including FSS Schedule holders, NIH holders, SEWP, Connections) a bill of Materials for commodities and requested the vendors to provide information regarding the best pricing vehicle. Does this constitute market research and is it allowable under the FAR, GSAM and GSA Policy Directives?

(Specifically, the language is as follows: This is a market survey for the attached items and/or services. Please review the following request from the customer and reply specifying the contract vehicle that you have that would provide the best price and value for the items requested. This is a market survey to determine which contract this will be competed on, please do not provide a quote at this time.)

That certainly is part of a market research effort. Depending on the item or service being bought further inquiry may be needed to see what prices are advertised in existing catalogues, an on-line price comparison of the same or similar products, a literature search, etc

8. Is an Administrative Contract Officer required to issue a modification (SF 30) when extending a Purchase Order at no cost or in exchange in expediting another order?

When you change a term or condition of the contract, you must modify the contract (PO). When you extend or shorten the schedule, even if it is a no cost change, the contract should be changed to reflect the new schedule. If you don't change the PO, you haven't changed the schedule. Remember, the contract can only be changed in writing.

9. Number 1 and number 2 below are in one of our tasks that has been awarded. Since number 2 is in the task, the client wants to add funds to cover the incentive. Is this allowed?

1. Penalties for failure to meet negotiated deliverable(s): At the discretion of the Client, the Contractor may be penalized for failure to meet negotiated dates of deliverables by 2.5% of the weekly cost of services, for deliverables up to 2 weeks late, and 5% per week for deliverables later than 3 weeks late. For deliverables later than 5 weeks, payment in the amount of the penalty shall be withheld and the Contractor put on ("Cure") notice pending satisfactory completion of the failed deliverable. Serious performance deficiencies may result in the partial or full termination of services under this task order.

2. IAW FAR 16.402-3, "Delivery Incentives", this task permits the awarding of performance incentives or awards directly to contractor staff for improvement, exceptional performance or exceptional quality, or exceptional innovation of deliverables, performed under this task order, to be determined by the contractor task management team (i.e.; Directors, Producers and their designated management staff); as made available and to be designated by the client.

At a minimum, the maximum value of the incentives should have been negotiated at the time the order was placed. In the absence of pre-negotiated incentive maximums, you may negotiate the maximum incentive value now, but you must be careful not to wind up with a cost plus a percentage of cost contract which is prohibited.

10. For A/E Services procured under the Brooks Act, is it acceptable to complete the first phase (place ad, evaluate qualifications of offerors, and short list) before and acquisition plan has been completed?

No, you must first complete the acquisition plan.

11. I work in a GSA/FTS program office supporting implementation of two telecommunications contracts. We regularly get calls from DoD customers asking about support after 10/1/04 considering the present acquisition environment. Can their present local telephone service continue into next year as planned? If they put a task order in place now that commences 10/1 or is effective now through next year, will it need to go through the DoD review process? Can they enter the DoD review process now? What should they do with a current requirement?

There is unfortunately no hard and fast answer to your questions. Clearly they can order services now subject to the availability of funds, this is something that we've done for years. They can also plan on their next contract being longer than 12 months so they are not faced with the annual issue surrounding Authorization and Appropriation Acts.

Right now they are not required to go through new approval requirements. When the DFARS changes they will have to comply with the DFARS provisions. None of us know for sure what those will be or when they'll be finalized. I don't anticipate any new requirements being created before the end of this fiscal year.

12. I am with the Office of Inspector General---USPS. I am looking for the GSA official definition of "Most Preferred Customer". Could you guide me to the right place?

In context of GSA schedules program, the term “most preferred customer” is not used. It is our understanding that the term is used interchangeably in the commercial market place instead of the “most favored customer” terminology used by GSA.

Most favored customer are the individuals or entities that get the best price, discounts, and/or concessions period-regardless of selling terms and conditions. GSA request this information at the time of solicitation. Generally, the offeror completes the “Commercial Sales practices Format” (see General Services Administration Acquisition Manual (GSAM 515.408, Figure 515.4-2) Access the GSAM

The Government's goal when negotiating MAS contract pricing arrangements is to obtain a discount from such a catalog or pricelist that is equal to or greater than the discount given to that firm's most favored customer (MFC). The most favored customer discount is equal to the best discount given by a firm to any entity with which that firm conducts business.

The GSAM 538.270 provides-

“The Government will seek to obtain the offeror's best price (the best price given to the most favored customer). However, the Government recognizes that the terms and conditions of commercial sales vary and there may be legitimate reasons why the best price is not achieved.”

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13. What is the government's policy on purchasing agents applying for rebates on product purchases such as computers? Where can I get the Government's Directive on this issue?

If COMPAQ offered a 100 dollar rebate, can the purchasing agent apply for the rebate, and who is entitled to the rebate amount if the named individual is on the rebate check? Does the rebate check have to be made out to the government agency?

What if the contractor buys the equipment "for the government's ownership"and applies for the rebate and receives the check? Does the contractor credit the Government?

There are no written policies or government directives regarding government employees applying for rebates on products purchased using government funds. However, a rebate resulting from the expenditure of appropriated funds would belong to the government. If the manufacturer will not make out the rebate check to the government or if the rebate form is submitted in the name of the federal employee, the federal employee would have to endorse any rebate check over to the government. Ethics rules prohibit federal employees from profiting from their employment.

Rather than give rebates, manufacturers selling to the government usually reduce their prices to commensurate with the amount of rebates given to the public.

If a contractor is purchasing equipment on behalf of the government under a cost reimbursable contract, the contractor is required to pass on the rebate to the government. For example, the clause at FAR 52.216-7, Allowable Cost and Payment, states, "The Contractor shall pay to the Government any refunds, rebates, credits, or other amounts (including interest, if any) accruing to or received by the Contractor or any assignee under this contract, to the extent that those amounts are properly allocable to costs for which the Contractor has been reimbursed by the government. Reasonable expenses incurred by the Contractor for securing refunds, rebates, credits, or other amounts shall be allowable costs if approved by the Contracting Officer."

As always, the terms and conditions of the contract are the best place to look to determine what the contractor's responsibilities are.

14. I am trying to locate the Best Value process in the Federal Acquisition Regulations.

"Best Value" is defined in FAR 2.101 and discussed in FAR 15.101:

“Best value” means the expected outcome of an acquisition that, in the Government’s estimation, provides the greatest overall benefit in response to the requirement.

FAR 15.101 Best value continuum. An agency can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches. In different types of acquisitions, the relative importance of cost or price may vary. For example, in acquisitions where the requirement is clearly definable and the risk of unsuccessful contract performance is minimal, cost or price may play a dominant role in source selection. The less definitive the requirement, the more development work required, or the greater the performance risk, the more technical or past performance considerations may play a dominant role in source selection.

FAR 15.101-1 Tradeoff process. (a) A tradeoff process is appropriate when it may be in the best interest of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror. (b) When using a tradeoff process, the following apply: (1) All evaluation factors and significant subfactors that will affect contract award and their relative importance shall be clearly stated in the solicitation; and (2) The solicitation shall state whether all evaluation factors other than cost or price, when combined, are significantly more important than, approximately equal to, or significantly less important than cost or price. (c) This process permits tradeoffs among cost or price and non-cost factors and allows the Government to accept other than the lowest priced proposal. The perceived benefits of the higher priced proposal shall merit the additional cost, and the rationale for tradeoffs must be documented in the file in accordance with 15.406.

Additional information on Source Selection procedures can be found in FAR 15.3.

15. Can a contractor that is under a cost reimbursement contract (running a Federally Funded R&D Center) use a PBS IDIQ contract for construction?

Reference GSA Order ADM 4800.2E, Eligibility to Use GSA Sources of Supply and Services, specifically Appendix B. 1, Other eligible users. It states, in part, "The following have been determined to be eligible to use GSA sources of supply and services, in addition to the organizations listed in appendixes A and C. An asterisk indicates that special limitations apply. This list is not all-inclusive; other activities also may be eligible to use GSA sources. GSA will rule upon eligibility on a case-by-case basis in response to requests received (see par. 11).

On the list that follows this paragraph is "Contractors and subcontractors - cost reimbursement (as authorized by the applicable agency's contracting official)."

So the answer is yes, a cost-reimbursement contractor may use GSA sources of supply and services, as provided by GSA Order ADM 4800.2E, in accordance with that order's stipulations. Also see Federal Acquisition Regulation (FAR) Subpart 51.1, Contractor Use of Government Supply Sources and FAR clause 52.251-1, Government Supply Sources.

16. NCR has several CO's that have differing opinions about our uniform contract ID numbers. What does manual and automated mean? For the majority of our simplified acqusitions the "M" is being used, however there are those that feel the "P" applies most of the time. Please explain.

M	Purchase orders (open market simplified acquisition)-manual
N	Reserved
P	Purchase orders (open market simplified acquisition)-automated

Automated (P) means the contract numbers are generated by an electronic contract writing system. Manual (M) means you do not have an electronic contract writing system so you assign contract numbers usually by signing into a log and taking the next available number, i.e., the first number may be for example, GS00M0001 taken by Contracting Officer John Adams and then the next person would log in their name and take contract number GS00M0002, and so forth. An automated or electronic contract writing system would assign the contract numbers in sequence for instance, GS00P0001, GS00P0002, etc.

17. To what extent can one contractor review the work of another contractor?

Regarding this question, a contractor working under the auspices of a government contract, generally will have the same rights and duties, under the terms and conditions of that contract, that a bonafide government employee has, which means full access to the work, proposals, etc. of other contractors. The contractor has signed non-disclosure agreements and covenants not to compete, of course.

Federal Acquisition Regulation (FAR) 3.104-3 (a)(1) states "A person described in paragraph (a)(2) of this subsection must not, other than as provided by law, knowingly disclose contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates. (2) Paragraph (a)(1) of this subsection applies to any person who (i) is a present or former official of the United States, or a person who is acting or has acted for or on behalf of, or who is advising or has advised the United States with respect to, a Federal agency procurement; and (ii) by virtue of that office, employment, or relationship, has or had access to contractor bid or proposal information or source selection information.

18. Can one contractor assist another with questions one contractor has?

Regarding this question, while the government encourages the exchange of ideas among industry, all questions regarding a procurement should be directed to the Contracting Officer for that procurement. FAR 15.201(f) states, in part, "General information about agency mission needs and future requirements may be disclosed at any time. After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors...."

19. Northeast wholesale is interested in selling to the U.S. Government bulk building supplies such as nails and tools. Please advise whom to contact. Thank you roz3341@COMCAST.NET

A contractor interested in selling in large quantities to the Government should consider becoming a GSA Schedule contractor. A contractor must first submit an offer in response to the applicable GSA Schedule solicitation. GSA awards contracts to responsible companies that offer commercial items falling within the generic descriptions in the GSA schedule solicitations. For more information, visit “For Vendors - Getting on Schedule” on the Federal Supply Service's Web site.

There are various schedules. For example, visit the Center for Facilities Maintenance and Hardware schedule to view the products at the Website

To ask more detailed questions, contact the Center for Facilities Maintenance and Hardware on (816) 926-6760. "

20. Is this the link to view Questions and Answers to Ask.Acquisition@gsa.gov? I couldn't get to this site from the Office of CAO page so I wasn't sure if this is current.

Yes, this is the correct website address for Ask.Acquisition@gsa.gov.

To access Ask.Acquisition@gsa.gov from the Office of the Chief Acquisition Officer’s (OCAO) Web site, go to the top of the page to “Policy,” click on “Acquisition” and scroll down the left side of the page to find “Ask Acquisition Questions and Answers.”

21. What is the definition of a cardinal change to a contract?

The Government Contracts Reference Book defines a cardinal change as “a change that is beyond the scope of the contract and, thus, cannot be ordered by the contracting officer under the contract’s Changes clause. Cardinal changes are breaches of contract.”

For recent case law that addresses cardinal change, refer to the United States Court of Federal Claims decision below: Cardinal Maintenance Services, Inc. v. United States, 63 Fed. Cl. 98 (2004)

***Additional Information on the Reference Book: Nash, Schooner and O’Brien, The Government Contracts Reference Book, (2nd ed. 1998), The George Washington University Law School, Washington, DC.

22. Where can I find a comprehensive listing (if one exists) of what authorities the HCA has delegated and to whom these authorities have been delegated? For example, we're trying to determine if the authority to approve a Determination and Findings to cancel a solicitation has been delegated down from the HCA.

There is no comprehensive listing. The General Services Administration Manual (GSAM) cites at 514.404-1, Cancellation of invitations after opening, that the HCA, or designee, makes any determinations required by FAR 14.404-1. In response to your example, you must check your region’s internal delegations to see if the HCA has delegated the authority to a designee.

23. Where can I find information on the web on the Clinger Cohen Act?

To access the Clinger Cohen Act, visit the eStrategy website

Once the page opens, click on ” E-Gov Laws, Regs and Policies,” under “Laws,” click on “Key E-Government Related Laws,“ click on “previous page” until you reach the “Clinger Cohen Act of 1996.”

24. “Our contracting officers do not want to sign modifications to close out task orders because they fear that if they sign a mod to some of these old task orders (some with problems) that they will then be thrown into the mix for the auditors to choose from for this next audit. The critical thing is that we are mandated to close out all of our ended task orders by the end of the fiscal year.

I have talked with our local IG auditors as well as sent them an email asking them if these close-out modifications would be considered in the 'mix' of the next round of audits. They verbally told me they did not think so, but they could not guarantee it because they are not in charge of deciding what orders will be pulled and what will not be pulled for this audit. They told me they sent my email up to the lead IG, but we have not heard back from them yet. As I stated, we are in critical mode now as we have literally hundreds of modifications to do to close out completed task orders and they are not getting done.

Can you help with finding out from the lead IG in this next audit whether these close out modifications will be included in the 'mix' or not? In my opinion as well as our local IG auditor's opinion is that the orders are dead and there is no action that we can take to make anything better or right if there is something wrong with the order.”

“Your concerns were discussed with the auditors and counsel office. All of us concur with your stated view. Close-out modifications while important to the overall procurement process they are not of major interest to us in the audit. While the next review is focused mainly on new awards, the only modifications that would be looked at in detail would be if an existing award was expanded by large dollar increases over its base or was used to add activities substantially beyond the original scope of work.”

GWAC

1. What are the differences between GSA Multiple Award Schedule (MAS) contracts, Governmentwide acquisition contracts (GWACs), and Multi-agency contracts (MACs)?

GSA Multiple Award Schedule (MAS) contracts are indefinite delivery, indefinite quantity (IDIQ) contracts available to all federal agencies worldwide. GSA awards and administers MAS contracts pursuant to section 201 of the Federal Property and Administrative Services Act of 1949, as amended. Under the MAS Program, GSA enters into governmentwide contracts with commercial firms to provide over 4 million commercial services and products. Agencies place orders directly with MAS contractors. Interagency agreements are not required to use MAS contracts. The Economy Act does not apply to orders placed against MAS contracts.

Governmentwide Acquisition Contracts (GWACs) are task order or delivery order contracts for information technology established by one agency for governmentwide use. Each GWAC is operated by an executive agent designated by the Office of Management and Budget pursuant to section 5112(e) of the Clinger-Cohen Act. The Economy Act does not apply to orders under GWACs.

Multi-agency Contracts (MACs) are task order or delivery order contracts established by one agency for use by government agencies to obtain a variety of supplies and services. The Economy Act (Federal Acquisition Regulation (FAR) Subpart 17.5) applies to orders placed under MACs, with the exception of MACs for information technology that are established pursuant to the Clinger-Cohen Act.

FUNDING

If the function to be performed is part of the requirement originally awarded, funds that are available from the original appropriation have always been and remain today available for that purpose - just like we may use original funds to pay claims. The problem arises when it is new work not contemplated under the original contract. You can't modify a contract to do new work using the original funds; you must use current year funds for that purpose, assuming that the modification is otherwise appropriate. Generally, you cannot modify a contract to add new work since you would not have competed the new work at the time of the original award.

2. What are the guidelines for using federal funds to purchase memberships to professional organizations?

As a general rule, GSA does not buy personal memberships for government personnel with government funds. We can, however, buy a government membership in private associations. This is currently done for associates in GSA's acquisition community for memberships in NIGP and NCMA. The associates who use these memberships cannot run for office and the membership is not personal to them. These memberships do not have to be competed.

3. I work for the Federal Technology Service and we are striving to comply with appropriate guidance and regulations. In doing so, we have recently been faced with several instances where a DoD entity provided funding and a defined requirement in September 2004. The funding is FY 04 O&M type funds. GSA began immediately processing the requirement, but due to various delays caused by our internal processes and policy changes, we have just recently been able to process the paperwork in sufficient enough detail to procure the products/services.

In addition, we have received official amendments to FY 04 customer funding documents that have reclarified that 1) the bona fide need is still valid, and/or 2) that funds are good for obligation purposes through a certain date, i.e., September 2005. The official amendments have been signed by authorized agency officials, i.e., financial managers and in some cases attorneys.

The defined requirement was received along with the funding when it was still valid for obligation or modified via official amendment by an authorized customer agency official. Under the attached policy (latest DoD Policy about proper use of IAs) I believe it may be possible to fulfill these requirements using the FY 04 funding. Please clarify for me whether or not we can legally utilize these FY 04 funds to award such a project.

Annual funds may be used only to fulfill the bona fide needs of the fiscal year for which the funds were appropriated. Agencies cannot obligate an annual appropriation for the needs of prior or subsequent years. However in the case of funds committed to the General Services Administration's IT Fund through an Interagency Agreement (IA) under the Property Act, 40 U.S.C. Sec. 501, et. seq., funds may be obligated on a contract or order beyond the period of time for which the funds were appropriated when: 1) the IA was made during the period of availability of the funds; 2) the customer agency's requirements were specific, definite and certain, with specificity similar to that found in contractual orders; and 3) FTS has acted reasonably and expeditiously to fill the requirements. Guidance has been provided in the following Memoranda:

Memorandum for Assistant Administrators dated June 7, 2004, from Sandra Bates and Kathleen M. Turco
Subject: Guidance and Information Concerning Interagency Transactions and Proper Management of Reimbursable Agreements in Revolving Funds and its Appendices:

Memorandum for Assistant Administrators dated January 10, 2005, from Sandra Bates and Kathleen M. Turco
Subject: Decision Tree Illustrating Conditions for Closing of Projects and Returning Funds (Appendix D)

Memorandum for Regional Administrators dated January 10, 2005, from Sandra Bates and Kathleen M. Turco and George Barclay
Subject: Acquisition of Information Technology Services - Clarifying Guidance (Appendix C)

Memorandum for Federal Technology Associates dated August 24, 2004, from Sandra Bates and David Drabkin
Subject: Acquisition of Information Technology Services

Memorandum for Under Secretary of Defense (Comptroller), Principal Under Secretary of Defense (Comptrollers) dated March 24, 2005, from Director, Accounting and Finance Policy and Analysis,
Subject: Proper Use of Interagency Agreements for Non-Department of Defense (DoD) Contracts Under Authorities Other Than the Economy Act

Further, you should consult with your Financial Point of Contact in GSA and in the originating office at DoD to clarify the type of funds submitted and the period of performance for those funds or expiration date of the funds.

4. If the customer agency's budget office officially amends the MIPR to establish a new expiration date, even though it appears to us to be 1 year O&M funding, is it your interpretation that we have are safe in using those funds as ultimately it is the agency's budget office that is responsible for the decision on whether funding is good or not?

Yes, the agency funding official has the authority to make the decision on the availability of funds - one, multi-year, no-year. GSA has no authority over other agencies and should never make the determination. The GSA CO should consider the agency funding amendment as an official document. If the GSA CO is uncomfortable with this, he/she should discuss it with the Regional General Counsel staff. Further, I strongly encourage the CO to make a note in the official contract file - date, agency, name and title of official, amount, appropriation/account symbol, etc. and attach the amendment to the IA or contract/task order modification.

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DoD

1. What is the Berry Amendment?

The Berry Amendment is a permanent law found in the note 10 USC 2533a. It essentially restricts procurement of all food, natural and synthetic fibers and hand tools to domestic sources with noted exceptions. For more information see DFARS 225.7002

2. What is the Wynne letter?

The Wynne letter was published October 2004 and outlines procedures on the proper use of non-DoD contracts. For a copy of the letter, see The Wynne letter.

It is understood that in the Pre-Award Stage for new requirements we should consult with DoD Contracting Officers and Financial Managers. However, please clarify whether or not the new policies and procedures for consulting with DoD contracting officers and Financial Managers will apply to contracts and task orders that have already been awarded.

For example, in the Post-Award stage, when exercising options under existing task orders should we attempt to consult with the DoD contracting officers and financial managers or will the concurrence from the DoD program manager suffice?

The idea is to make sure that you understand what the customer wants to acquire and what rules apply to the acquisition. To do this it makes sense to coordinate with the DoD customer. This may be the contracting officer, the funds manager or the program manager. There is no requirement to do this at the moment, it just makes good sense.

PAST PERFORMANCE

FAR 16.505 discusses using past performance as an evaluation factor dealing with "Past performance on earlier orders under the contract, including quality, timeliness, and cost control."

FAR 8.405-1(c)(1) lists use of past performance as a potential factor for determining best value for orders exceeding the micro-purchase threshold, but gives no guidance on elements or characteristics of past performance we should be evaluating.

What is your recommendation or guidance for the elements or characteristics of past performance we should be evaluating for FSS buys that exceed the micro-purchase threshold, procured under FAR 8.4?

Our advice is to follow the guidance at FAR 15.304(c)(3). IAW FAR 42.1501 Past Performance evaluations should address: "the contractor's record of conforming to contract requirements and to standards of good workmanship; the contractor's record of forecasting and controlling costs; the contractor's adherence to contract schedules, including the administrative aspects of performance; the contractor's history of reasonable and cooperative behavior and commitment to customer satisfaction; and generally, the contractor's business-like concern for the interest of the customer."

PROTEST

1. What is the proper format for contractor's to use when submitting a protest to a GSA Contracting Officer or to the Agency

It is GSA’s policy that prior to submission of any agency protest, all parties shall use their best efforts to resolve concerns raised by an interested party at the contracting officer level through open and frank discussion, as required by FAR 33.103(b).

Should those discussions fail to resolve concerns and the contractor should follow the format and information noted in the General Service Administration Acquisition Regulation (GSAR) Clause usually found in Section I or section of their basic contract or section C. 39 of the Federal Supply Schedule 70 Contract.

Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all cases protests shall be filed no later than 10 days after the basis of the protest is known or should have been known, whichever is earlier. The agency, for good cause shown, or where it determines that a protest raises issues significant to the agency’s acquisition system, may consider the merits of any protest which is not timely filed (FAR 33.103(e)). FAR guidance

The Procedures to utilize when filing a protest are as specified in the clause below: 552.233-70 Protests Filed Directly with the General Services Administration. Protests Filed Directly with the General Services Administration (Mar 2000) (a) The following definitions apply in this provision: “Agency Protest Official for GSA” means the official in the Office of Acquisition Policy designated to review and decide procurement protests filed with GSA. “Deciding official” means the person chosen by the protester to decide the agency protest. The deciding official may be either the Contracting Officer or the Agency Protest Official. (b) The filing time frames in FAR 33.103(e) apply. An agency protest is filed when the protest complaint is received at the location the solicitation designates for serving protests. GSA’s hours of operation are 8:00 a.m. to 4:30 p.m. Protests delivered after 4:30 p.m. will be considered received and filed the following business day. (c) A protest filed directly with the General Services Administration (GSA) must: (1) Indicate that it is a protest to the agency. (2) Be filed with the Contracting Officer. (3) State whether the protester chooses to have the Contracting Officer or the Agency Protest Official for GSA decide the protest. If the protest is silent on this matter, the Contracting Officer will decide the protest. (4) Indicate whether the protester prefers to make an oral presentation, a written presentation, or an oral presentation confirmed in writing, of arguments in support of the protest to the deciding official. (5) Include the information required by FAR 33.103(d)(2): (i) Name, address, fax number, and telephone number of the protester. (ii) Solicitation or contract number. (iii) Detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protester. (iv) Copies of relevant documents.

Last Reviewed 11/6/2008

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